More on the UN Charter, Syria, and “Illegal but Legitimate”

Earlier today I said that President Obama’s dismissal of a Security Council authorization as a prerequisite for intervention in Syria “marks the death knell for the long-held USG view that humanitarian intervention without Security Council approval violates the U.N. Charter.” Marty Lederman responded that the President’s position is, to the contrary, that “because the UNSC system is often dysfunctional when humanitarian crises are at stake, there may be times when breaches of Article 2(4) of the Charter are legitimate or even morally compelled–particularly in the service of remedying and deterring breaches of certain fundamental jus in bello norms established in international law.” In other words, a Syria intervention would be illegal but legitimate.

Deborah Pearlstein pointed me to this MSNBC interview with Deputy National Security Advisor Tony Blinken, in which Blinken states (around the 8:45 mark):

As a matter of international law, you’re correct that either the Security Council needs to act or you need to be acting in self defense or in the defense of a partner country. Here what we believe is we have a very legitimate basis . . . to enforce a profound international norm.

This statement support Marty’s interpretation. As I said earlier, this “illegal but legitimate” view means that the President, who says he can invade Syria without congressional authorization, must also think he can violate non-self-executing treaties consistent with the “Take Care” clause (a view that Marty thinks is wrong). I also think, probably contrary to Marty, that an overt invocation of “illegal but legitimate” would be a change of the prior U.S. position. Mike Matheson’s famous insistence that Kosovo did not establish “new doctrines or precedents” can no longer be maintained, since the administration (including Blinken) is expressly invoking Kosovo as a precedent, and it is now hard to see how “illegal but legitimate” in the humanitarian context is not a USG doctrine. I am not even sure what is at stake over the distinction between a humanitarian intervention exception to the Charter and “illegal but legitimate" other than the Take Care clause implication and the possible awkwardness for the U.S. military that I noted in my last post. On the international plane “illegal but legitimate” is no less subject to “abuse” by others nations than a humanitarian intervention exception to the Charter.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.